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A.T.I.D.E. — Methodology to Assist Veteran in Filing an Appeal

I receive contacts from veterans around the country frustrated after receiving a VA Rating Decision and simply seeking some guidance on a daily basis. Commonly, the veteran does not need formal representation, but does need to understand what actions need he/she needs to take to have successful resolution of their claim subject to a Notice of Disagreement.

I took a few moments to analyze what my thought process is when discussing these issues, listed the key words associated with my thought process, and developed an acronym called A.T.I.D.E.(Acquire, Triage, Identify, Develop, and Execute). I considered adding an S (“sit back and wait”) but I determined that it was unnecessary and flippant. As an aside, Atide is apparently an opera by Czech Composer, Josef Myslivecek, about the greek myth of Atys, son of Croesus.

The below is how I go about my formal representation of any veteran I represent before the Department of Veterans Affairs. The same process can be applied for any veteran/claimant who wishes to represent themselves pro se.

(A)cquire – Acquire all documents related to the veterans claim to always include: (1) a copy of the veteran’s administrative file (C-File) through a Freedom of Information Act request before the operative VA Regional Office; (2) obtain a complete copy of the veteran’s Official Military Personnel File (OMPF) through submission of an SF 180 with the National Personnel Records Center; (3) obtain a copy of the veteran’s medical treatment records from the operative VA Medical Center (VAMC) or private physician. Additionally, I may need to obtain additional information from various federal agencies or persons depending upon the nature of the claim.

(T)riage – After receiving all of the above documents, triage the issues. This requires a careful and considerate review of all documents located in the veterans’ C-File, to include all adjudicative documents related to old claims, OMPF, post-discharge medical treatment records, and service medical records (SMR). If there were multiple claims adjudicated over the course of years, I may chart the issues of when the claim filed, when adjudicated in a Rating Decision, and if a claim to reopen was filed. My principal concern that this point is simply to identify what issues are subject to appeal and if there are multiple claims ongoing to identify where each issue is in the adjudication process.

(I)dentify – After triaging the general nature of the claims, I begin to identify the major issues subject to appeal from the recent rating decision, inferred issues that should have been addressed in the rating decision, issues regarding effective date of award, and any claims that have not been filed by the veteran because he/she is unaware that they may be service connected disabilities. It is at this point that I may need to research scientific/medical studies if the issue relates to environmental/chemical exposure, review the operative regulatory/statutory provisions for a particular issue, review the Diagnostic Codes in Title 38, Part IV, and identify any issues regarding ancillary benefits, such as Special Monthly Compensation (SMC).

Additionally, I am carefully reviewing the Rating Decision/Statement of Case so I can fully understand the basis for denial by the VA . . . even if I disagree with the decision’s conclusion.

(D)evelop – At this point, I’ve obtained all information at that point available regarding the veteran’s claim, identified the major issues that need to be resolved, and formulated an understanding of why the veteran was previously denied on his/her claim. The next step is to develop a plan of action.

If it is an issue of service connection, this usually involves identifying the medical professional who may be willing to proffer a medical opinion, and/or lay statements from the veteran or family members who have knowledge of the claimed disability. If the issue involves the rating percentage for a particular disability, then I’m identifying what actions I need to take to get a proper medical evaluation conducted for that disability. It is at this point that I’m considering any issues involving individual employability (TDUI). If the issue involves effective date of award, SMC, and/or dependency claim, then it is normally a purely legal argument that can be resolved through the briefing/legal memorandum process.

(E)xecute: Once I’ve developed a plan of action on each issue, the next action is to simply execute. If I’m unable to obtain the necessary evidence identified (this commonly occurs when a treating physician is unwilling or unable to proffer a medical opinion), then I need to adjust fire and development an alternative plan of action.

Once I’ve executed on my plan, my final action is to draft the brief in support of Notice of Disagreement and/or Substantive Appeal to the Board of Veterans’ Appeals. Medical nexus statements, lay statements, located military records, are provided as exhibits attached to the brief. While formal briefing is not required before the VA — as someone who clerked at a federal appellate court and handled administrative appellate claims in both the military and federal government — a well-written brief can only help to clarify the issue on appeal and simplify the decision making process for the reviewer.

If you have questions regarding your claim for disability compensation before the VA, please do not hesitate to contact us at www.finkrosner.com or via telephone at (732) 382-6070.

About Seth Director

Over nine years of trial and appellate litigation experience at the Department of Justice and the Army Judge Advocate General Corps where I frequently handled high profile, complex litigation before various federal courts. I am now an associate in the Veterans’ Law section at the law firm of Fink Rosner Ershow-Levenberg, LLC, and a Department of Veterans Affairs accredited attorney. The Veterans’ Law section at Fink Rosner Ershow-Levenberg offers nationwide representation at all levels of the VA administrative process, as well as in the Federal court system, at the U.S. Court of Appeals for Veterans Claims, and the U.S. Court of Appeals for the Federal Circuit. I focus solely on Veterans’ law and Veteran-related issues, claims and benefits and can offer a unique perspective as a veteran of Operation Iraqi Freedom.